Thursday, January 28, 2010

The Center on International Cooperation at New York University just published a concept paper I wrote with Steve Hege on mining in the Kivus. It's a proposal for how to instill some accountability in the Kivus, inspired by work done by the UN Group of Experts. You can find the paper here, it's pretty short and to the point.

Here's the basic idea:

Recently, numerous initiatives have focused attention on the linkage between conflict and the mineral trade in the Congo. NGOs such as Global Witness and ENOUGH have led campaigns urging governments and companies to take action. The United Nations Group of Experts on the DRC has released several reports documenting in detail how businesses, armed actors and government actors are involved in the mineral trade.

These initiatives have focused on three avenues of dealing with the problem: due diligence, certification and reinforcing local institutions. Due diligence, as suggested by Global Witness and ENOUGH, advocates making companies responsible for determining the conditions under which minerals are mined and brought to market. Companies would have to carry out rigorous internal audits to document their entire supply chain, and an independent international monitoring mechanism would be set up to verify their compliance. While companies could begin conducting such audits immediately, absolute certainty could only come through comprehensive certification of minerals at the source. Bags of cassiterite, coltan or wolframite would have to be sealed at the mine and labeled as conflict-free, so that traders, auditors and international mining companies would be able to distinguish between legal and illegal product.

Eventually, due diligence and certification will be pivotal in reforming the Congolese mining sector. However, comprehensive certification would require reliable agents to be deployed at thousands of pits, mines and streams throughout the eastern DRC, requiring considerable time and resources to set up. Due diligence, on the other hand, remains mostly focused on international trade. In the short run, as long as armed actors control mines and mineral traffic routes, they will find ways to benefit and to get the product onto the international market.

This is why we propose a Third Party Oversight Mechanism, an independently-funded entity that investigates the links between armed actors and the mineral trade. It would provide concrete incentives to the Congolese government to prevent armed groups and military units from benefiting from the mineral trade. The oversight mechanism would function much like the UN Group of Experts has, with several key differences.

Its mandate in a nutshell:

It would be set up with an official mandate from the Congolese government to monitor the mineral trade. The close collaboration with the Congolese government is crucial, as this will help encourage support from local and national institutions and will help the mechanism to be sustainable.

The mechanism would establish a norm together with the Congolese government that would provide a definition of illegal trade in minerals. Options could include: “Buying minerals from mines controlled by armed actors is illegal,” “buying minerals that you know come from areas controlled by armed actors is illegal,” “buying minerals in direct collusion with armed actors is illegal,” or any other definition established with the government.

The investigators would ascertain which traders are violating this norm. It would rely on documentary evidence and eyewitness testimony based on clear evidentiary guidelines spelled out in the mechanism’s mandate.

The Congolese government would designate an institution that would be charged with sanctioning individuals who violate this norm, including government officials and army commanders. Ideally, sanctions would be administrative, such as a fine or the suspension of mining or export license, as this would lower the burden of proof and expedite investigations.

In order to provide clear guidance to traders about which mining sites are considered to be off-limits, the mechanism would include a mapping cell. This cell would establish public maps of mining sites in the three Kivus provinces. Regularly update versions of these maps would be readily available on the internet.

The mechanism would be funded by international donors. Ideally, its members would be appointed by the United Nations Secretariat in consultation with the Congolese government. If a UN mandate is not forthcoming, it could be set up through the International Conference on the Great Lakes Region (ICGLR) and funded by outside donors, such as the European Union. However, it would be crucial to preserve the financial and substantive independence of the mechanism.

It would be led by approximately fifteen international and Congolese thematic experts with extensive experience in complex and sensitive field investigations. The mapping cell would comprise an additional twelve staff members, most of whom would be hired locally from the Kivus.

Benefits

Provide incentives and sanctions in view of formalizing trade An oversight mechanism would have a direct impact on the mineral trade. By sanctioning spoilers and promoting transparency in concrete ways in the eastern Congo, the mechanisms would provide tangible incentives to traders to stop purchasing from areas controlled by armed actors.

Make information available Most of the mineral trade in the eastern Congo is underground, making it easier for armed actors to profit and depriving the government of vital revenues. The mechanism would provide detailed information about mineral supply chains and their links to local and regional actors. Regular briefings would be provided to provincial and national Congolese authorities, as well as to donors. Mineral traders could draw on this information in order to know which areas would be off-limits. This information alone, however, would not suffice as due diligence.

Capacity to respond to dynamic trade networks The economic networks of the Kivus are highly malleable. Attempts to regulate the mineral trade by prohibiting purchases from certain mining zones could have the adverse effect of driving the trade of those minerals into the informal sector and undermine efforts for greater transparency. However, a third party oversight mechanism with geographic mapping tools would be able to anticipate these changes in supply chains.

Facilitate the strengthening of Congolese institutions Close collaboration between Congolese authorities deployed at Mineral Trading Centers, and this mechanism could also generate confidence amongst donors to increase their financial and in-kind support for Congolese mining institutions with a view towards facilitating the progressive handover of the responsibilities mandated for this independent oversight. Congolese members of the mechanism would also eventually play a key leadership role in this process.

7 comments:

This seems a more serious effort to think through how one might break the link between mineral exploitation and conflict than the one currently under consideration in Congress. But for what they're worth, here a few initial reactions. To what extent does its success depend on the Congolese government behaving like a Weberian rather than a patrimonial state? (Because to that extent it won't succeed.) Second, given that many of the people doing the illegal exploitation are already "underground," and part of the illegal and informal economy, how's the Congolese government going to sanction them? Finally, what's our interest in helping FARDC extend their reach--given their well-documented history of abuse?

This proposal and the US legislation aren't mutually exclusive. But you need a mechanism along these lines in order to make legislation in the US or other countries workable. Moreover, you can't legislate this proposal--it needs to be negotiated with the Congolese government and other key international players.

1. The Congolese is has many features of a neo=patrimonial state, as its bureaucracy depends largely on ethnic and other, personalized patronage networks, although not on traditional patrimonial authority. Efforts like these are not panaceas or even significant steps towards ending such favoritism and corruption, but they can help the state consolidate its power and marginalize militia.

2. Which brings me to the other point - yes, the state is absolutely abusive and corrupt, putting the FARDC in charge is not necessarily going to improve much. But the mechanism does not just target rebel groups (as the UN Group of Experts does), but all abusive military units, which would include the FARDC.

True accountability and transformation will not come from outside actors; it will only come with the transformation of Congolese society, more organized protest against state abuse, in particular through the development of student, trade organizations and a middle class. That will take a long time, but international actors can help midwife that process. (They can also stifle it, so they have to be careful).

3. And yes, this is not something the US Congress can legislate, but the US government can definitely weigh in on it and help convince the DRC government that they need more accountability.

In the last two years, the UN Group of Experts has lost its credibility, much like the Congolese Government. The last report by UN Group of Experts which is a rehash of Rakiya Omaar's reports, hence the work of the Rwandan military intelligence Services, is a symptom of what went wrong with the "Experts". This has led me to question their motives, findings, and recommendations. For example the UN Group of Experts states that Rwandan rebels receive from minerals $ 1million per month, and yet concludes that the occasional $200 or so sent by Rwandans in the diaspora to their relatives finance wars. How can one receiving $1 million/month need less than US$5,000/year in order to function?Besides, the Rwandan rebels seen in the Kivus are armed with very old AK47, most walk barefoot, almost naked. Brief, the UN Group of Experts model has ended up being flawed, corruptible, and no longer credible. Enough and Global Witness are much more credible. Contrary to the last UN Report of the Experts, Global Witness clearly showed the responsibility of Rwanda and Burundi. If you want to stop the illicit exploitation of the minerals in Eastern Congo, follow the trail and whoever mostly benefits from the criminal activity. The model proposed by Jason which would involve the Congolese government is certainly acceptable by the DRC government and perhaps the people. The questions are: what DRC government? What can the Congolese government do against the main thieves: the Rwandan Defense Forces and the elite in Kigali. The Congolese Government was not even able to face the CNDP rebels and had to call in the true CNDP, i.e, RDF. My proposition may be radical but I must give it:1) Reign in on the spoiled dictator Kagame so that he democratizes and negotiates with and brings back his Hutu refugees;2) The Congolese must first clean and keep their house in order or our US government needs to start considering DRC as yet another failed state;3) Work with the clean leaders of the DRC in implementing the approach proposed by Jason.We can no longer ignore the DRC or leave it a failed state. The stakes are too high.

I very much agree with your point that true accountability will come only through the transformation of Congolese society, and that one of the best ways we can help is to buttress indigenous civil society groups pressuring the state. So why not attempt to incorporate Congolese civil society into this proposal?

As long ago as 2003, I worked with a couple of Congolese ngos on proposals to monitor the mineral trade. We could never interest any of the forty or so funders we approached in supporting us--the general consensus was that Congolese weren't capable of doing this sort of work--but the idea still seems worthwhile to me.

It is part of the proposal, although we didn't highlight it so much - the funders of this should treat this as a package deal and also fund NGOs and the Congolese institutions (Saesscam, ministry of mines) involved in this to boost capacity and make this sustainable.

The mapping would almost solely be subcontracted to Congolese NGOs, there are 2-3 working on these issues already.

1. In the full report you and Hege say that "[t]he oversight mechanism, would...monitor the application and enforcement [of] such sanctions [against individuals violating the norm of not buying from armed actors]." Presumably you foresee the legitimacy for such sanctions coming from the mechanism's founding mandate? And how would the mechanism interact with the Congolese judiciary, if at all? Please expand.

2. The "financial and substantive independence" you posit in the funding and composition section does seem open to politically motivated accusations of Western imperialism, a bit like when Paul Collier suggested recently that over-the-horizon security guarentees be provided to African states by Western (particularly EU) nations to mitigate the threat of coup d'état, and was shouted down for covertly pushing for another imperialist age. What balance are you looking to strike in terms of locally lead action with externally resourced leadership?

And what do you see as the advocacy priorities for groups in the West looking to push for the adoption of schemes like the one you outline?